Record No. 1517-93-2
Decided: January 31, 1995
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY, John F. Daffron, Jr., Judge
(Carolyn P. Carpenter; Carpenter, Woodward Wagner, P.L.C., on briefs), for appellant.
(Edward D. Barnes; Edward D. Barnes Associates, P.C., on brief), for appellee.
Present: Judges Benton, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Marissa R. Davenport appeals the decision of the circuit court awarding custody of the parties' two children to their father, James A. Davenport. Mother raises the following issues on appeal:
(1) whether the trial court erred in failing to credit competent evidence that the father had abused his children as defined in Code Sec. 16.1-228 and was therefore guilty of family abuse pursuant to Code Sec. 20-107.2; and
(2) whether the trial court erred in failing to order independent mental examinations of father and the children.
Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. Rule 5A:27.
The evidence was heard ore tenus as well as through depositions. In this matter, as in every case in which a child is concerned, the paramount consideration of a trial court is the child's best interests. On review, "[a] trial court is presumed to have thoroughly weighed all the evidence, considered the statutory requirements, and made its determination based on the child's best interests." Furthermore, the evidence is viewed in the light most favorable to the prevailing party below and its evidence is afforded all reasonable inferences fairly deducible therefrom. "In matters of a child's welfare, trial courts are vested with broad discretion in making the decisions necessary to guard and to foster a child's best interests." The trial court's judgment, "when based on evidence heard ore tenus, will not be disturbed on appeal unless plainly wrong or without evidence to support it."
Failure to Consider Competent Evidence
Mother asserts that the trial judge failed to credit competent evidence that father had abused his children, as defined in Code Sec. 16.1-228. Specifically, mother cites the section of the statute which defines an "abused or neglected child" as any child "whose parents . . . commit[ ] or allow[ ] to be committed any sexual act upon the child in violation of the law." Code Sec. 16.1-228(4). The trial judge is required to consider "[a]ny history of family abuse as . . . defined in Sec. 16.1-228" when determining custody of minor children. Code Sec. 20-124.3(8).
At numerous hearings, the trial judge heard and observed the testimony of both parties as well as several other witnesses. The trial judge also reviewed the depositions of still other witnesses. The issue mother raises on appeal was addressed not only in this custody proceeding but also in a separate criminal proceeding, which was terminated upon the Commonwealth's motion of nolle prosequi.
The record indicates that during the marriage father and mother engaged extensively in autoeroticism. At least some of these acts were done by the father in rooms and at times which inappropriately risked exposing the children to these activities.
Nevertheless, the record is far from clear in supporting mother's allegations that father intentionally exposed the children to his activities by calling to them or inviting them into the room while he was engaged in those activities. Mother's own testimony was not consistent and differed in significant ways from the deposition of her therapist. Moreover, mother specifically denied that she had ever alleged father had intentionally called the children to view his activities or that he had intentionally abused the children.
Faced with the extensive but conflicting testimony, the trial judge made the following credibility determination:
[G]iven the chronology of events and the things that happened later, I really can't fairly determine or decide or say that there is abuse as defined by the statute. I just reject that.
When reviewing a credibility determination upon appeal, we must give trial courts . . . the wide discretion to which a living record, as distinguished from a printed record, logically entitles them. The living record contains many guideposts to the truth which are not in the printed record; not having seen them ourselves, we should give great weight to the conclusions of those who have seen and heard them.
"[T]he extreme harm caused by child sexual abuse requires the court to subordinate all matters and, if necessary, to place a parent's interests second to the best interests of the child." M.E.D. v. J.P.M., 3 Va. App. 391, 398, 350 S.E.2d 215, 219 (1986). The trial judge's comments demonstrate that he gave careful consideration to mother's allegations of father's sexual abuse and activities. However, the trial judge also detailed on the record the Code Sec. 20-107.2 factors he considered in determining that the children's best interests were served by awarding custody to father. Significantly, in reviewing the parties' respective roles in the life of the children, the trial judge noted that father's past participation in the children's lives "shows an involvement more extensive than I have seen in the great bulk of most of the cases that I've heard."
Based upon the record, we cannot say that the trial judge failed to consider competent evidence or that the trial judge's determination was clearly erroneous.
Failure to Order Mental Examinations
Mother argues the trial court erred by failing to order independent mental examinations of father and the children. Mother notes that the guardian ad litem also recommended an additional mental examination of father.
The record indicates that father consulted a psychiatrist during the course of the litigation. The trial judge heard the ore tenus testimony of the psychiatrist concerning his assessment of the father. Moreover, we find in the dialogue between the trial judge and the guardian ad litem adequate explanation for the trial judge's reluctance to seek another examination. Specifically, in discussing the concerns expressed by the guardian ad litem, the trial judge questioned whether an additional assessment would add significantly to the evidence.
The record is replete with references to the parties' sexual activities. Professional assessments of the mental and emotional health of both parents were considered by the trial judge. The trial judge determined that the evidence failed to support any allegation of sexual abuse of the children. Therefore, we cannot say the trial judge's denial of mother's request for additional assessments of father and an assessment of the children was an abuse of discretion.
Accordingly, the decision is affirmed.